South Africa’s Constitutional Court affirms equal parental leave for all parents in landmark judgment. Learn key legal principles, case facts, impacts, and next steps for employers and families.

A discussion of Van Wyk and Others v Minister of Employment and Labour ZACC 20 (CCT 308/23 & CCT 309/23, handed down 3 October 2025).​

Written by Roy Bregman, admitted attorney with over 51 years’ experience in employment and family law.

Key Takeaways

• Landmark Equality: South Africa’s Constitutional Court’s 2025 decision affirms that all parents (biological, adoptive, or via surrogacy) are entitled to four months and ten days of parental leave, to be shared as they choose.
• Unconstitutional Discrimination Ended: Sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act (UIF) that gave substantially less leave to non-birthing parents have been declared unconstitutional.
• Immediate Impact: Employers and parents must comply with the interim regime while Parliament works to amend the law—policies must now ensure non-discriminatory, flexible leave.
• Broader Significance: Recognizes diverse families and dismantles gendered caregiving stereotypes; sets a modern standard for equality and client-centred employment practices.

Introduction: Legal Principles of Equal Parenting

South Africa’s legal framework is built on the constitutional principles of equality, dignity, and inclusivity, values now vigorously reinforced by the Constitutional Court’s historic judgment in Van Wyk and Others v Minister of Employment and Labour ZACC 20. Previously, the Basic Conditions of Employment Act (BCEA) and the UIF Act reinforced outdated roles, giving birthing mothers 16 weeks of leave, while other parents received only 10 days (fathers) or 10 weeks (adoptive/commissioning parents). This distinction upheld gender stereotypes and denied many families the rights and flexibility they need.

This case refines the constitutional right to equality and protection against discrimination, applying these core principles to the realities of modern parenting and diverse family structures.

Case Law Discussion

Facts of the Case

The applicants (parents affected by the restrictive and unequal provisions of the BCEA) challenged the legality of South Africa’s parental leave statutes. The High Court (Van Wyk and Others v Minister of Employment and Labour 2024 45 ILJ 194 (GJ)) had already ruled certain sections unconstitutional for discriminating based on the parent’s gender, method of parenthood, and biological connection.

Key problems included:

• Commissioning and Adoptive Parents: Granted only ten weeks of leave, compared to sixteen for birthing mothers.
• Non-birthing Parents: Fathers and other parents not on maternity, commissioning, or adoptive leave—limited to ten days, reinforcing secondary caregiver stereotypes.

The Constitutional Court’s Findings

On 3 October 2025, South Africa’s Constitutional Court confirmed the High Court’s findings and declared sections 25, 25A, 25B, 25C of the BCEA and related UIF sections invalid, to the extent that they discriminate between categories of parents regarding parental leave. The Court found:

• Gendered Caregiving Stereotypes: The old law entrenched outdated gender roles, undermining equality and dignity.
• Immediate, Practical Relief: Declaration of invalidity suspended for 36 months, giving Parliament time to create new legislation. Meanwhile, an interim regime applies—all parents collectively qualify for four months and 10 days of parental leave, shareable as they see fit.
• Shared Leave Arrangement: Where both parents are employed, leave must be divided by mutual agreement or split equally. Single parents or those where only one is employed receive for the full period.
• Female Employees’ Rights: Parental leave may start up to four weeks before birth, and no mother may work within six weeks after giving birth unless certified fit, with these periods counted within the overall allocation.

Practical Implications and Policy Impact

For Employers

• Immediate Compliance: Employers must update policies to reflect the interim regime. All parents must receive non-discriminatory parental leave, regardless of gender, family structure, or biological connection.
• Proactive Communication and Planning: Clear internal procedures for leave management, especially when both parents are employed in the same business.
• Pay and Benefits: Assess legacy practices (e.g., maternity benefits) for equity in parental leave compensation to avoid future discrimination claims.

For Families

• Family-Driven Flexibility: Parents negotiate who takes leave according to their circumstances, breaking away from one-size-fits-all gender roles.
• Diverse Family Recognition: Surrogacy and adoptive parents are explicitly included, reinforcing inclusivity.

For Policymakers

• 36-Month Legislative Window: Parliament must create a more progressive statutory regime that balances the interests of families, employers, and especially children.
• Long-Term Social Impact: The judgment signals a cultural shift toward better work-life balance, family dignity, and the constitutional promise of true equality.

Conclusion

This Constitutional Court judgment is a transformative moment in South African employment and family law. It not only abolishes discriminatory distinctions in parental leave but sets a precedent for workplace equality and family-centred legal protections. By affirming equal rights for all parents and structuring flexible, non-gendered parental leave, the Court centres both the welfare of the child and the dignity of the family. Employers, policymakers, and professionals must act quickly to reflect this new vision in workplace practice and future law.

Frequently asked questions (FAQ)

Q: What does the new judgment mean for South African parents?
A: Both parents can now share four months and ten days of leave, regardless of how they became parents.

Q: Must both parents work for the same employer to split leave?
A: No, parents should agree between themselves, though employers must accommodate equitable arrangements.

Q: Are surrogacy and adoptive parents included?
A: Yes, the law now accords full parental leave to all parents, not just biological ones.

Q: What happens if parents cannot agree on how to divide leave?
A: The leave is split as equally as possible.

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